Notre Dame Law Review Volume 18 | Issue 2 Article 3 12-1-1942 Aristotle's Conception of Equity (Epieikeia) Anton-Hermann Chroust Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Anton-Hermann Chroust, Aristotle's Conception of Equity (Epieikeia), 18 Notre Dame L. Rev. 119 (1942). Available at: http://scholarship.law.nd.edu/ndlr/vol18/iss2/3 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARISTOTLE'S CONCEPTION OF "EQUITY' (EPIEIKEIA). In a previous article, "Aristotle's Conception of Justice," 1 my friend David Osborn and I attempted a presentation of that well known Aristotelean concept which, in the annals of Jurisprudence, has become, without doubt, not only one of the most discussed problems, but also one of the most fertile notions. Justice in its "legalistic meaning," 2 also called "Justice in the narrower sense," a signifies, according to Aristotle, Equality;4 that is, a "fair mean" ' or "ideal mean" 6 between excess and defect.' It constitutes a definite national criterion 8 for the administration of human conduct, a concept, in other words, which is primarily concerned with the proportionate ratio of "commensurable goods" ' and by means of which the "law in action" can more specifically be "evaluated." As such it deals with the examination of human actions as regards their effects upon others in the light of the criterion of whether they coincide with, or whether they exceed or fall short of that "fair mean" 10 expressed by the principle of Equality. " The principle of Equality itself denotes a "social principle," " since it refers to man's relations to 1 In: "Notre Dame Lawyer," vol. XVII, No. 2 p. 129 f. 2 See, for instance, 1108 a 6 f. (quoted from "Aristotelis Opera Omnia," edit. Academia Regia Borusica, Berlin, 1831, vol. 1H, page 1108, left hand column (a), line 6); 1130 a 15; 1130 b 5 f.; 8 f. 3 1130 a 23; 1130 b 2; 30. 4 1129 a 34; 1130 b 9; 16; 24; 33; 1131 a 10 f.; 12; 13; 14; 15; 16. 5 1129 a 3; 1130 b 2; 1133 a 9 f.; 20 f.; Compare also 1129 a 33; 1129 b 10; 1130 a 26; 1133 b 31; 1134 a 4 f.;7 f. 6 1108 a 6; 1130 a 9; 22; 1130 b 14; 1131 a 14; 1132 a 22 f.; 29; 1132 b 4. 7 1108 a 7 f.; 1129 b 6 f.; 1131 b 11; 12; 32 f.; 1133 a 9 f. 8 Compare, for instance, 1131 a 31 f.; 29; 19; 1131 b 4; 1132 a 17 f. 9 1130 b 2; 1133 a 9 f.; 20 f.; also 1119 b 26; 1129 a 3. 10 See, for instance, 1130 a 9; 1130 b 14; 1131 b 14; 1132 a 2 f. 11 1131 a 17. 12 1130 a 3; 1129 b 26; 30 f. NOTRE DAME LAWYER others "3and, by embodying the "good of others," ," does what is to the advantage of another. "5 Thus Justice in the sense of Equality, being of social nature displayed in the form of "equitable fairness," 1 is but a principle of the "common good," " of the politically organized society 18 and its general welfare. At the same time "Equality" or "Justice in the narrower sense" must be considered but one form in which the moral virtue of Justice, 1" the "Justice in the wider sense" is manifested; 20 one of the forms in which this virtue may be displayed. The principle of Equality has two main aspects, the first of which is exhibited in the act of "distributing" 21 certain matters between two or more persons, or "adjusting" these matters to their proper ratios. 22 This is called "distributive Justice," 23 the principle of which demands that only equals be treated equally 24 and which always is "proportionate Equality," that is to say, a form of Justice which allots bur- dens according to the individual's ability to shoulder them and accords support in amounts which vary with the needs of each individual.25 The other aspect of the principle of Equal- ity is the so-called "commutative Justice" which in contradis- tinction to "distributive Justice" ignores the differences in 2 rank and worthiness 26 of the persons involved, ' being merely concerned with the proportionate ratio between two "com- mensurable goods" such as labor and wage, damage and re- 13 1129 b 27; 32; 33; 35; 1130 a 2; 4; 7; 8; 13; 1130 b 1; 1130 a 2. 14 1130 a 17. 15 1130a 3 f. 10 1131 b 11; 1132 b 32 f.; 1133 a 9 f. 17 1130 b 30. 18 1129 b 26. 1o 1129 a 6 f.; Compare also 1130 a 18; 19; 30; 31. 20 1129 b 17 f.; 1130 a 2 f. 21 See, in general, 1131 a 9 f.; 1131 b 9; 15. 22 1130 b 31; 1131 a 9 f. 23 1130 b 30. 24 1131 a 22; Compare "Politika," 1280 a 11 f. 25 See, for instance, 1134 a 24. 26 1131 a 24 f. 27 1132 a 2 f.; 5. ARISTOTLE'S CONCEPTION OF "EQUITY" covery. 28 The fundamental difference between "distributive Justice" and "commutative Justice" is to be discovered in the distinction between Equality with regard to the persons involved 2) and Equality without regard to the person and his rank; 80 between the notion that everyone should have his due according to his rank and worth and the notion that the same treatment applies to all persons irrespective of their rank or worth. This obvious dualism in the administration of Justice merely indicates two separate processes in the realization of the principle of Equality. The choice of the kind of Justice to be applied in each case, in other words, the question whether "distributive Justice" or "commutative Justice" should govern a case, will be determined, in the last analysis, by the nature of the facts and circumstances un- derlying this case. No examination of the Aristotelean conception of Justice, however, could be called exhaustive without a thorough treatment of Aristotle's c o n c e p t i o n of "Equity" (EPIEIKEIA). In order to comprehend the particular position held by the concept of "Equity" within Aristotle's system we first have to discuss its relation to Justice in general. 81 We are instructed that "Equity," being itself a form of Justice or the "Just," is in some respects superior to "strict Justice," that is, to Justice in accordance with an established rule of strict law, to strict Common Law Justice; 32 it is "superior to one sort of Justice (namely to strict Common Law Jus- tice), but remains itself just, but is not superior to Justice as being generically from it." Thus "Justice and 'Equality' are one and the same thing, and both are good, though 'Equity' (in some respects) is the better." 83 They are, in 28 Compare 1133 a 14 f. 29 1131 a 15 f. 30 1132 a 25. 31 1137 a 32. 32 1137 b 10 f.; 24. 33 1137 b 11 f. NOTRE DAME LAWYER other words, neither absolutely identical nor generically dif- ferent, " that is, different in genus. For should these two concepts generically be different the "Equitable" could not be called "good" or "just." " The particular problem of the Aristotelean "Equity" con- sists in the realization that the "Equitable," which is but a different "sort" of Justice, 36 distinguishes itself from the strict Common Law Justice to the extent that, generally speaking, the latter always refers in a more defined way to whatever is just in a definite situation according to a definite rule of law, while "Equity" or the "Equitable" might be called a "universally just attitude" " indefinite in nature. Hence "Equity" or the "Equitable" is not superior to Justice in general, but merely and in some respects to what is styled as "just in a definite situation," to the Justice of the Com- mon Law fixed by certain absolute rules. 18 We remember that "the several rules of . the strict (common) law are related to the actions conforming with them as universals to particulars." an The Common Law rule, the strict Justice, in consequence, always contains "a general statement" 40 which "lays down a general (univer- sally valid) rule," "' and which, for that very reason, cannot cover every concrete case, 4 but must in certain instances be considered defective on account of its generality. " "In mat- ters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the strict Common Law takes into consideration merely the majority of cases, although it is not unaware of the error this involves." 34 1137 a 33 f. 35 Compare 1137 b 4; 10 f. 36 Compare 1137 b 8. 37 Compare 1137 b 29 f. 38 1137 b 24. 39 1135 a f. 40 1137 b 12 f.; 20; 27. 41 1137 b 20 f. 42 1137 b 14. 43 1137 b 26; 21 f. 44 1137 b 14 f.; Compare also 1137 b 27 f. ARISTOTLE'S CONCEPTION OF "EQUITY" Human actions with which the Common Law concerns itself are, on the other hand, manifold and diversified, 5 that is, "the materials of human conduct are essentially irregular" " and undetermined. The Common Law Justice proceeds by means of general and abstract pronouncements 47 which may, on account of this generality, prove defective in certain in- stances.